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M-1 A P P E N D I X M The National Environmental Policy Act (NEPA) provides the statutory basis for agency rules and guidance imple- menting the law. NEPA is implemented through Council on Environmental Quality (CEQ) regulations found at 40 CFR Parts 1500-1508, and through agency-specific regulations and guidance promulgated by individual federal agencies. Table M-1 identifies the most significant U.S. DOT agency laws, regulations, and guidance supplementing NEPA and the CEQ regulations, as noted in the case studies documented in this research. Some of the case studies were advanced under rules and guidance that have been subsequently revised. This is not intended to be a complete list of the numerous federal statutes, regulations, and executive orders governing environ- mental review of transportation infrastructure projects in the United States. Consulting agency staff and websites is neces- sary for more complete and current information. Key NEPA Requirements of U.S. DOT Agencies
M-2 Agency Reference NEPA-Related Contents Specific Considerations Identified in Case Studies Relevant Case Studies U.S. DOT DOT Order 5610.1C Department-wide procedures for considering environmental impacts of proposed U.S. DOT actions. Federal Highway Administration (FHWA) 23 USC Part 168: Integration of Planning and Environmental Review Provisions enacted in MAP-21 to address the integration of transportation planning and environmental review. 23 CFR Part 771: Environmental Impact and Related Procedures Rule establishing joint FHWA and Federal Transit Administration (FTA) procedural requirements for satisfying NEPA. While this is a joint regulation with FTA, separate provisions apply to each agency. For example, there are different Categorical Exclusion (CE) lists and public involvement requirements. 23 CFR Part 772: Procedures for abatement of highway traffic noise and construction noise Rule establishing evaluation and abatement of noise for FHWA projects. These rules contain different thresholds for mitigation than apply to FTA projects. T-REX East Link 23 CFR Parts 450 and 500, 49 CFR Part 613: Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule Paragraph 450.318 and Appendix A provide rules and guidance for linking planning and NEPA. While these are joint regulations with FTA, the case studies show some differences in approach to linking planning and NEPA, e.g., number of alternatives reviewed and selection of the preferred alternative during NEPA. Columbia River Crossing Mountain View East Link 40 CFR Part 93, Subpart A: Conformity to state or federal implementation plans of transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the federal transit laws EPA rule on air quality conformity analysis for transportation projects funded under Title 23 or FTA. Transportation conformity is different than general conformity air quality analysis, which is required for projects not funded under these funding categories under subpart B of the Clean Air Act amendments. National Gateway Federal Transit Administration (FTA) 23 CFR Part 771: Environmental Impact and Related Procedures Rule establishing joint FHWA and FTA procedural requirements for satisfying NEPA. While this is a joint regulation with FHWA, separate provisions apply to each agency. 23 CFR Parts 450 and 500, 49 CFR Part 613: Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule Paragraph 450.318 and Appendix A provide rules and guidance for linking planning and NEPA. While these are joint regulations with FHWA, the case studies show some differences in approach to linking planning and NEPA, e.g., number of alternatives reviewed and selection of the preferred alternative during NEPA. Columbia River Crossing T-REX East Link 49 USC 5309: Major Capital Investment Projects; New and Small Starts Evaluation and Rating Process Final Policy Guidance Rule and policy guidance that spells out the procedural requirements and criteria that apply during the planning and development of projects proposed for funding with the Section 5309 New Starts and Small Starts funds. Requires FTA review and approval of the project as it advances from planning into project development and then into engineering. Project must be approved into project development before NEPA is completed. Rating criteria for grant funding can affect the selection of preferred alternative. Columbia River Crossing Dulles Project T-REX I-70 East Table M-1. Key NEPA requirements of U.S. DOT agencies.
M-3 Agency Reference NEPA-Related Contents Specific Considerations Identified in Case Studies Relevant Case Studies water quality, wetlands, and Waters of the United States. Also focuses on safety, security, and public involvement requirements. These considerations may result in requiring an EIS in some situations that would not be required for other U.S. DOT agencies. FAA Order 5050.4B: NEPA Implementing Instructions for Airport Actions Instructions for federal actions that support airport development projects. Paragraph 9.g, 1-11 lists federal actions that require NEPA review. The list includes conditional, unconditional, and mixed approval of Airport Layout Plans. Section 202 discusses Airport Layout Plans. DART DFW Extension Dulles Project XpressWest FAA Order JO7400.2K: Procedures for Handling Airspace Matters, Chapter 32, Environmental Matters General procedures applicable to airspace management and policy and procedures unique to Objects Affecting Navigable Airspace and Airport Airspace Analysis. Chapters 4 and 6 contain policies and procedures related to NAVAID, Aeronautical Studies, and evaluation and determination of effects. These considerations may trigger NEPA review even if airport property is not touched by project. DART DFW Extension Dulles Project XpressWest 14 CFR Part 77: Safe, Efficient Use and Preservation of Navigable Airspace Standards and notification requirements for Objects Affecting Navigable Airspace. Obstruction Evaluation/Airport Airspace Analysis is required to change the Airport Layout Plan. These considerations may trigger NEPA review even if airport property is not touched by project. DART DFW Extension Dulles Project XpressWest Advisory Circular 150/5300- 13A: Airport Design, and Interim Guidance on Land Uses within Runway Protection Zones Procedures for review of potential impacts to Runway Protection Zone (RPZ). Operating rail lines are considered âplaces of public assemblyâ and are prohibited land uses in RPZ. Dulles Project Federal Railroad Administration (FRA) Procedures for Considering Environmental Impacts, 64 FR 28545 and 78 FR 2713 Non-regulatory guidance on FRA procedures for compliance with NEPA and related environmental laws, executive orders, and regulations. Outlines 20 different CEs that are different from FTA and FHWA. Requires additional review of contractors. Impacts to 4(f) properties require a separate 4(f) analysis concurrent with the NEPA document. Since FRA is responsible for rail safety, there are additional safety reviews by the Rail Safety Advisory Committee. XpressWest 40 CFR Part 93, Subpart B: Determining Conformity of Actions to State or Federal Implementation Plans, Subpart B U.S. Environmental Protection Agency (EPA) rules requiring general conformity air quality analysis. General conformity involves different air quality analysis than projects funded under Title 23 or transit programs, which are subject to transportation conformity under Subpart B of the Clean Air Act Amendments. National Gateway Federal Aviation Administration (FAA) FAA Order 1050.1E Environmental Impacts: Policies and Procedures Agency-wide policies and procedures for NEPA compliance. Requires the evaluation of specific environmental impact categories and different thresholds of interest to airports for noise, air quality, land use, construction, floodplains, light emissions and visual effects, DART DFW Extension Dulles Project XpressWest Table M-1. (Continued). (continued on next page)
M-4 49 CFR Part 239: Passenger Train Emergency Preparedness Rules requiring Emergency Preparedness Plans. FRA Office of Safety approval of Emergency Preparedness Plan is a federal action. XpressWest High-Speed Intercity Passenger Rail (HSIPR) Program NEPA Guidance and Table Additional non-regulatory guidance that applies to programs and specific projects funded through the HSIPR program. Requires consideration of potential effect on HSIPR when reviewing projects. CREATE Agency Reference NEPA-Related Contents Specific Considerations Identified in Case Studies Relevant Case Studies Surface Transportation Board (STB) 49 CFR Part 1105: Procedures for Implementation of Environmental Laws Rules to assure adequate consideration of environmental and energy factors in the Board's decision-making process pursuant to NEPA and related laws. Paragraph b allows STB to exempt state and local environmental and land use requirements under certain circumstances. XpressWest U.S. Coast Guard (USCG) Commandant Instructions M 16590.5C: Bridge Administration Manual NEPA implementation instructions for USCG projects. Navigational impacts must be evaluated. FHWA leads but consults USCG on level of environmental review and need. Port of Miami Tunnel Table M-1. (Continued).